CBI Investigation: A Long-standing Tussle Between Centre and States

Aparajita Gupta
Oct 27, 2020
7 min read

2020 has been a year of unprecedented controversies since day one and now when we are only few months away from 2021, it still somehow manages to bring up new wrangles and debate topics for War of Words in our already over filled plates.

One such unprecedented yet not so unprecedented controversy is the aftermaths of the untimely death of Bollywood actor Shushant Singh Rajput on 14th June 2020. Now the reason for being referred to as not so unprecedented is the long-standing tussle between Centre and State.

To understand the tussle patently we must know about both the parties involved and as we all are aware of the fact what a State is , for CBI , let’s begin with the basics:

WHAT IS CBI?

The Central Bureau of Investigation (CBI) is the premier investigating agency of India. Operating under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions. Originally set up to investigate bribery and governmental corruption, in 1965 it received expanded jurisdiction to investigate breaches of central laws enforceable by the Government of India, multi-state organized crime, multi-agency or international cases.

HISTORY:

At an early stage of World War-II, the Government of India realised that vast increase in expenditure for war efforts had provided opportunities to unscrupulous and anti-social persons, both officials and non-officials, for indulging in bribery and corruption at the cost of public and the Government. It was felt that Police and other Law Enforcement Agencies under the State Governments were not in a position to cope with the situation. An executive order was, therefore, passed by the Government of India in 1941, setting up the Special Police Establishment (SPE) under a DIG in the then Department of War with mandate to investigate cases of bribery and corruption in transactions with which War and Supply Department of the Government of India was concerned. At the end of 1942, the activities of the SPE were extended to include cases of corruption on Railways also, presumably because the Railways were vitally concerned with movement and supply of war materials.

In 1943, an Ordinance was issued by the Government of India, by which a Special Police Force was constituted and vested with powers for the investigation of certain offences committed in connection with the departments of the Central Government committed anywhere in British India. As a need for a Central Government Agency to investigate cases of bribery and corruption was felt even after the end of the war, the Ordinance issued in 1943, which had lapsed on 30th September, 1946 was replaced by Delhi Special Police Establishment Ordinance of 1946. Subsequently, the same year Delhi Special Police Establishment Act, 1946 was brought into existence.

JURISDICTION, POWERS & LIMITATIONS:

The CBI is a national agency with police powers. Its primary jurisdiction is confined to Delhi and Union Territories. CBI derives power to investigate from the Delhi Special Police Establishment Act, 1946. Section 2 of the Act vests DSPE with jurisdiction to investigate offences in the Union Territories only. However, the jurisdiction can be extended by the Central Government to other areas including Railway areas and States under Section 5(1) of the Act, provided the State Government accords consent under Section 6 of the Act. In other words, as policing (detecting crime and maintaining law and order) is a State subject, the law allows the agency to function outside only with the consent of the States. The executive officers of CBI of the rank of Sub Inspector and above, exercise all powers of a station office in-charge of the police station for the concerned area for the purpose of investigation. As per Section 3 of the Act, Special Police Establishment is authorised to investigate only those cases, which are notified by the Central Government from time to time.

RELATIONSHIP WITH STATE POLICE:

Maintaining law and order is a state responsibility as "police" is a State subject, and the jurisdiction to investigate crime lies with the state police exclusively . The CBI being a Union subject may investigate:

● Offences against central-government employees, or concerning affairs of the central government and employees of central public-sector undertakings and public-sector banks

● Cases involving the financial interests of the central government

● Breaches of central laws enforceable by the Government of India

● Major fraud or embezzlement; multi-state organized crime

● Multi-agency or international cases

However, in order to conduct such investigations within a state, the CBI is required to take prior consent from the State Government. This consent can be in the form of a 'general consent' under Section 6 of the Delhi Special Police Establishment Act, or a 'specific consent' concerning individual cases. Almost every state in India has provided the CBI with a general consent to investigate within their borders; however, on occasion, states may withdraw this general consent and require the CBI to take specific consent for individual cases.

PREVIOUS WITHDRAWLS & CONTROVERSIES:

Several instances have been noticed in the history where State Governments have withdrawn their consent. As of 2020, five states have withdrawn their 'general consent' for the CBI to operate, and require a special consent to be granted on a case to case basis. In November 2018, Andhra Pradesh and West Bengal governments withdrew general consents for the CBI to investigate, and accused the Central Government of using federal agencies to destabilize state politics. In January 2019, Chattisgarh also withdrew general consent to the CBI. In July 2020, Rajasthan withdrew general consent to the CBI. In October 2020, Maharashtra withdrew general consent to the CBI. The result of withdrawal of general consent is that it restricts the CBI from instituting new cases.

There has been several controversies involving CBI till date , some major ones are:

Bofors scandal, Hawala scandal, Priyadarshini Mattoo murder case, Sister Abhaya,

Sohrabuddin case, Sant Singh Chatwal case, Malankara Varghese murder case, Bhopal gas tragedy, 2G spectrum case, Indian coal allocation scam, 2008 Noida double murder case etc.

In 2013, Judge of the Supreme Court of India (and later Chief Justice of India) R. M. Lodha criticized the CBI for being a "caged parrot speaking in its master's voice", due to its excessive political interference irrespective of which party happened to be in power.

But no matter how many controversies there have been , the CBI has a high conviction rate and has solved the multiple high-profile cases, such as Bhanwari Devi murder case, Satyam scandal, Sister Abhaya murder case, and INX Media case.

Over the years, the Central Bureau of Investigation has emerged as a premier investigating agency of the country which enjoys the trust of the people, Parliament, Judiciary and the Government. In the last 65 years, the organisation has evolved from an anti corruption agency to a multi faceted, multi disciplinary central police law enforcement agency with capability, credibility and legal mandate to investigate and prosecute offences anywhere in India. As on date offences under 69 existing Central and 18 State Acts, 231 offences under the Indian Penal Code have been notified by the Central Government under section 3 of the DSPE Act.

PRESENT CONTROVERSY:

In the amidst of Shushant Singh Rajput’s case various intricacies have arisen and among them one such intricacy is the Centre’s recommendation of investigation by the CBI.

On one hand, the centre was of the opinion that as CBI is an independent body so it should lead the investigation and on the other hand State of Maharashtra believed that the local police should handle the case.

WHY THE TUSSLE?

Basically, the section 6 of DSPE Act ,1946 talks about taking consent of the concerned state to exercise the power of investigation of specified offences by CBI and this process creates a strain in Centre-State relations due to various reasons and especially in the cases where the Political Parties forming the government in the State differs from the one that is in Centre. One such common inducement due to which State governments time and again hold backs from consenting to opt for a CBI investigation is the prospect of misemployment or abuse of such agencies against the Political Party of the State itself, even when such investigation is highly called for.

The popular belief behind unwillingness in granting consent for the CBI investigation is that it portrays the deficiency in the potential of the State administration and State Police as when once the consent is given the case moves from being a State matter to a matter of National significance and the ruling political party in the State is looked down upon among the masses.

Also , when CBI takes over a case, the National gravity is at stake so it will not be possible for the State to conceal any aspect of the case to keep up its up to par persona in the eyes of common people.

Arbitrary nature of the Statute: The statute allows the State to withdraw its consent for the CBI investigation recommended by the Centre but it does not constrain the State to give proper reasoning and grounds for the same , which results in arbitrariness as the State has absolute power in respect of the consent and hence, the statute is flawed and needs amendment.

What makes CBI different from FBI:

At present, the CBI works as per DSPE Act, 1946 and the Central government exercises superintendence over it and its working in the States depends upon the granting of consent by the respective States, whereas in the case of FBI , it automatically comes into the scene whenever federal offences are committed, which points us to the fact that at present the CBI lacks independence and legal competence to engage in tasks like FBI and to suo moto investigate any such case where its presence is necessary without losing any valuable time.

What can be done for future prospects:

⮚ Amendment regarding the bindingness of providing a reasonable justification by the States for not granting the consent for CBI investigation recommended by the Centre.

⮚ A mere amendment to the DSPE Act ,1946 to empower CBI to automatically takeover investigation of such cases may not be sufficient enough and an amendment in the Constitution itself is required and for that, a political consensus has to be created in the nation. In view of the growing menace of terrorism, narco-crime and economic-crime, a consensus can be created. The states have to be assured and convinced that such powers will not be misused for any political purpose.

In State of West Bengal and other v. Committee for Protection of Democratic Rights, the Supreme Court held that “notwithstanding the statutory restrictions in the Delhi Special Police Establishment Act, the High Court under Article 226 and the Supreme Court under Article 32, can direct any matter to be investigated by CBI for fair and impartial enquiry”. Also the court further explained that fair and impartial investigation is one of the inherent features of human rights which comes under the purview of Article 21 “Right to Life".

If we talk about India, with every new day there is some new case to deal with relating to corruption, terrorism, complex crime, money laundering etc and there is no paucity of crimes affecting national security and economy. In spite of such scenarios, very few cases are given to CBI. Its high time that the basic idea behind having an independent agency like CBI should be optimized to its full strength and in the betterment and benefit of the country for whose security it is bought into existence and put a stop to this long-standing tussle between Centre and State apropos CBI investigation.